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SQE 1 - FKL1 > PUBLIC LAW 1/2 > Flashcards

PUBLIC LAW 1/2 Flashcards

1
Q

What 3 courts developed from the Kings Council?

A

Exchequer
Common Pleas
Kings Bench

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2
Q

What does todays legal system have its origins in?

A

The King’s and Queens courts following the Norman conquest

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3
Q

What dictated the establishment of a fixed Kings Court?

A

The Magna Carta in 1215

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4
Q

What is the historical definition of the common law?

A

The law as applied by the Kings judges vs the law as applied by the local customary courts

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5
Q

What was the problem with the writ system?

A

It was rigid, and you could only be heard in court if you fit a category

Prevented growth of common law

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6
Q

What does Stare decisis mean?

A

Stand by precedent, stand by what has been decided

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7
Q

What 3 things does a judgement consist of?

A

A summary of facts

Statements of law, ratio, obiter dicta

Decision on remedy

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8
Q

Does distinguishing a case widen or narrow the ratio of it?

A

Narrow

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9
Q

When is a judgement reversed?

A

On appeal

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10
Q

When is a judgement overruled?

A

When a superior court decides the OG precedent is wrong and corrects it

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11
Q

When can the court of appeal depart from its precedent?

A
  1. For previously conflicting decisions
  2. If the CAs decision was overruled expressly or impliedly by the supreme court
  3. If the CAs previous decision was made per incuriam
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12
Q

What does per incarium mean?

A

When a previous court was not aware of a relevant authority

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13
Q

Is the upper tribunal higher than the first tribunal?

A

Yes

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14
Q

Do judges create law?

A

The modern opinion is philosophically they shouldn’t but really they do

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15
Q

Which court did equity develop from?

A

The court of chancery

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16
Q

Where equity and the common law conflict, which will prevail?

A

Equity

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17
Q

When can equitable remedies be awarded?

A

When damages are not adequate

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18
Q

What are the equitable remedies?

A

Specific performance
Injunction
Declaration
Rescission
Rectification

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19
Q

When is specific performance available?

A

There is a valid, enforceable contract

Damages would not be adequate

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20
Q

In what 2 contractual circumstances is specific performance not available?

A

Breach of contract for personal services

Performance of contractual obligations which would require constant supervision

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21
Q

What is an equitable declaration?

A

A legally binding statement about any of:
The legal rights of the parties
The existence of facts
A principle of law

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22
Q

When is rescission available?

A

Mistake

Misrep

Duress/undue influence

Where the parties can be put back into their pre-contract positions

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23
Q

What does equitable rectification do?

A

Corrects a document to reflect the parties contractual intention

Only written contracts

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24
Q

What is primary legislation?

A

Act of parliament

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25
Q

What is secondary legislation also known as?

A

Subordinate

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26
Q

What is secondary legislation?

A

Law created under ministers or other bodies under powers given to them by a parent act of parliament

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27
Q

What is a public act?

A

Acts relating to matters of general public concern

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28
Q

What is a private act?

A

An act which relates to particular places or particular people… eg., by a local authority to build a bridge

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29
Q

What is a private members bill?

A

A bill promoted by a particular member of parliament through the ballot system which can eventually be supported by the government

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30
Q

What are the 5 steps in the primary legislative process?

A

First reading

Second reading

Committee stage

Report Stage

Third reading

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31
Q

What happens at the first reading?

A

Title is read

Date set for second reading

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32
Q

What happens at the second reading?

A

Main principles of the bill are debated by MPs

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33
Q

What happens at the committee stage of a bill?

A

Details are scrutinised by a legislative committee

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34
Q

What happens at the report stage of a bill?

A

Proposed amendments are debated, there is a vote on the committees report

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35
Q

What happens at the third reading?

A

Final debate and vote on the bill, if passed it goes on to the other house

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36
Q

What powers do courts have over secondary legislation?

A

If it was created outside of the powers provided in a parent act they can quash it

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37
Q

How is secondary legislation written down/made? In what types of documents?

A

Statutory instruments, orders in council, by laws

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38
Q

Can parliament amend a statutory instrument?

A

No, they can only approve or reject it

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39
Q

In which house/s can bills be introduced?

A

Either

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40
Q

What is the literal rule of statutory interpretation?

A

Ordinary, plain and natural meaning of the words… no consideration of what parliament ‘meant’

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41
Q

What is the golden rule of statutory legislation?

A

If you were to interpret it literally, it is so inconsistent/absurd that the court cannot be convinced it was Parliaments intention so the court is justified in applying another signification

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42
Q

What is the mischief rule of statutory interpretation?

A

Examines the original purpose of the provision under consideration

This is a very old rule, at the time the purpose was stated in the preamble of statute

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43
Q

Is the mischief rule applicable in todays day and age?

A

No, completely defunct and replaced by purposive

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44
Q

What is the purposive approach?

A

Looks at both the meaning and underlying process

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45
Q

In a purposive approach where the literal meaning conflicts with the will of parliament?

A

If purposive gives a clear answer that will be used

Otherwise a strict literal interpretation will be applied

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46
Q

What does expressio unius mean?

A

Expression of one thing to the exclusion of another

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47
Q

What does edjusdem generis mean?

A

Of the same kind

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48
Q

What does noscitur a sociis mean?

A

A word known by its associates

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49
Q

What presumption is made when general words follow a list of specific words?

A

The general words are interpreted to restrict them to the same kind of objects as the specific words

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50
Q

Is the UDHR law?

A

No, but it is customary international law

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51
Q

At what point can a claim be made to the ECtHR in Strasbourg?

A

If all domestic legal remedies had already been exhausted

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52
Q

Is the Council of Europe an EU entity?

A

No

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53
Q

What oversees the ECHR?

A

The council of europe

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54
Q

What is an absolute human right?

A

Cannot be lawfully interfered with in any way by the state

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55
Q

What is a limited human right?

A

A right that can sometimes be interfered with by the state

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56
Q

What is a qualified right?

A

A right which can be lawfully interfered with provided certain legal tests are met

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57
Q

Generally, what 3 circumstances must there be for a state to interfere with a qualified right?

A

Interference was prescribed by or in accordance with the law

Interference was in pursuit of a legitimate aim

Interference was necessary in a democratic society

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58
Q

What is a monist legal system?

A

When a legal system treats all forms of law as belonging to a single binding legal system

International law is binding over domestic legal systems

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59
Q

What is a dualist legal system?

A

Two legal orders are wholly separate

UK court is not bound in the same way by international law as in the monist system

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60
Q

When is international law applicable in the UK?

A

When the UK is a party to proceedings before an international court to which jurisdiction it has agreed to submit

When the UK has incorporated international legal rules into its domestic legal system

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61
Q

Is parliament a public authority for the purposes of the ECHR?

A

No

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62
Q

What is the CCRC?

A

Criminal cases review commission

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63
Q

What does the CCRC have the power to do?

A

Review miscarriages of justice and send cases back to the court of appeal or crown court

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64
Q

What does the CCRC usually have to identify to send cases back for appeal?

A

Identify new evidence or a new legal argument that makes the case look significantly different

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65
Q

What are the 3 levels of judge in county court from least to most senior?

A

Deputy district judges

District judges

Circuit judges

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66
Q

Where will an appeal against a decision by a deputy district judge or district judge happen?

A

it will remain in county court and be heard by a circuit judge

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67
Q

Where will a decision from a circuit judge be appealed to?

A

It will go from county to high court

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68
Q

Does county court create precedents?

A

No

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69
Q

What types of cases does the first tier tribunal hear?

A

Appeals from citizens against decisions made by government departments

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70
Q

What are the 8 first tier tribunals?

A

War and Pensions and Armed Forces Compensation Chamber

Social Entitlement Chamber

Health, education and social care chamber

General regulatory chamber

Tax chamber

Immigration and asylum chamber

Property chamber

**employment but it isn’t technically a chamber

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71
Q

What 4 chambers are in the upper tribunal?

A

Administrative appeals chamber

Tax and chancery chamber

Immigration and asylum chamber

Lands chamber

**employment appeals tribunal is not technically a chamber

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72
Q

Who is the senior president of the tribunals?

A

The independent and statutory leader of the tribunal judiciary

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73
Q

Are tribunal members legally qualified?

A

No, there are specialised lay members too

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74
Q

What is an inquest?

A

A coroners investigation

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75
Q

What qualification are coroners?

A

Barristers, solicitors or medical practitioners of not less than 5 years standing

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76
Q

What is a coroners decision called?

A

A verdict

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77
Q

What is an inquest similar to?

A

A court hearing but less formal

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78
Q

Are there juries in inquests?

A

Yes, especially if the cause of death needs to be decided, especially if happened in state custody

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79
Q

Are coroners members of the judiciary?

A

No

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80
Q

Who starts a public inquiry?

A

Government departments

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81
Q

What special powers do public inquiries have?

A

They can compel testimony and the release of other forms of evidence

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82
Q

What justification is required for a public inquiry?

A

The existence of public concern

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83
Q

Does the government have to act on the recommendations of a statutory public inquiry?

A

No

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84
Q

What are the senior courts?

A

Supreme court

Court of appeal

High court

Crown court

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85
Q

What 3 divisions are in the high court?

A

Kings bench - criminal

Chancery division

Family division

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86
Q

Where do high court judges sit in London?

A

Royal courts of justice

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87
Q

Where do high court judges sit outside london?

A

District registries

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88
Q

How do you get the position of a high court judge?

A

Nominally appointed by the monarch on the recommendation of the Lord Chancellor after a fair and open competition administered by the Judicial Appointments Commission

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89
Q

What prefix do high court judges have?

A

The honourable

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90
Q

How do you verbally refer to a High Court judge?

A

Mr, Mrs, Ms

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91
Q

What is a master?

A

A procedural judge in the high court

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92
Q

What does a master do?

A

Deal with all aspects of legal proceedings from issue until it is ready for a trial

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93
Q

How many masters are there?

A

Senior master

Nine KBD masters

Chief master

5 chancery masters

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94
Q

What is a district registry?

A

A high court centre where cases are heard outside London

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95
Q

Is KBD predominantly a civil or criminal court?

A

Civil

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96
Q

What do judges in the KBD mainly deal with?

A

Common law business – contract and tort

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97
Q

What more specialist measures does the KBD preside over?

A

Applications for judicial review

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98
Q

What is the administrative court a part of? (e.g., which court/division)

A

The KBD

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99
Q

What does the administrative court deal with?

A

The lawfulness of actions of central/local government, regulatory/disciplinary bodies, inferior courts and tribunals and other public bodies and officials exercising public functions

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100
Q

Does the administrative court deal with both civil and criminal?

A

Yes

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101
Q

Which judicial review proceedings are dealt with outside the Administrative Court and where?

A

Immigration cases are mostly heard in the upper tribunal

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102
Q

When will an administrative court case be heard by a divisional court with 2+ judges?

A

Usually criminal cases including more difficult extradition cases

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103
Q

What does the chancery division deal with mostly?

A

Business and property cases

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104
Q

Who is the head of the chancery division?

A

The chancellor of the high court

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105
Q

What 3 courts are in the chancery division?

A

Insolvency and companies court

Patents court

Intellectual property enterprise court

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106
Q

Outside the 3 main courts within the chancery division, what is the ‘general chancery work’

A

Area of practice where equity is most prevalent

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107
Q

In which building is the chancery division based?

A

The rolls building

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108
Q

What is the organisational function of the business and property courts?

A

They bring together the work of the chancery, and specialist courts of the KBD

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109
Q

Which buildings do the business and property courts operate out of?

A

The rolls building, and at the civil and family courts in manchester, birmingham, leeds, cardiff and bristol

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110
Q

What is included within the business and property courts category?

A

Commercial court

Business list

Admiralty court

Circuit commercial court

Technology and construction court

The financial market

The insolvency list

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111
Q

What type of child/family related decisions does the high court have exclusive jurisdiction over?

A

Wardship

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112
Q

Where do family law appeals go to?

A

The Family Court

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113
Q

Where can solicitors carry out advocacy if they don’t have higher rights?

A

MAGS

County

Tribunals

Appeal Tribunals

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114
Q

Where can solicitors with higher rights appear?

A

High court

Court of appeal

Supreme court

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115
Q

What 2 divisions does the court of appeal have?

A

Civil and criminal

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116
Q

What building is the Court of Appeal based out of?

A

The Royal Courts of Justice, OCCASIONALLY sits elsewhere

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117
Q

How do you become a court of appeal judge?

A

You are appointed by the monarch, on the recommendation of a selection panel convened by the Judicial Appointments Commission

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118
Q

Who are the judges on the court of appeal?

A

The heads of the other divisions (e.g., Master of the Rolls, President of the KBD)

The Lords Justices of Appeal

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119
Q

How do you orally refer to an appeal court judge?

A

Lord/Lady Justice (surname)

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120
Q

How do you refer to an appeal court judge in writing?

A

Surname LJ

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121
Q

From which courts does the civil division of the court of appeal hear from?

A

High court

County (CIRCUIT judge)

Employment appeal tribunals

Immigration appeal tribunal

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122
Q

Who heads the Civil Division of the court of appeal?

A

Master of the Rolls

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123
Q

How many judges are there in a civil court of appeal case?

A

3

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124
Q

Where does the criminal division of the court of appeal hear appeals from?

A

Crown court

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125
Q

Who heads the criminal division of the court of appeal?

A

The Lord Chief Justice

Head of the judiciary, President of the Courts of England and Wales

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126
Q

Who is the head of the judiciary?

A

The lord chief justice

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127
Q

How many judges hear criminal cases in the court of appeal?

A

Generally 3

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128
Q

What combination of judges hear civil court of appeal cases?

A

Any combination of the heads of division and lord justices of appeal

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129
Q

What combination of judges hear cases in the criminal court of appeal?

A

Lord chief justice OR President of KBD OR one of the Lord Justices of Appeal

PLUS

2 high court judges

OR

1 high court judge and one specially nominated senior circuit judge

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130
Q

What did the supreme court replace?

A

The appellate committee of the house of lords

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131
Q

How many supreme court judges are there?

A

12

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132
Q

What are supreme court judges known as?

A

Justices

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133
Q

How do you orally refer to a supreme court judge?

A

Lord/Lady Surname

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134
Q

What is the senior supreme court judge known as?

A

The president

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135
Q

When does the full supreme court sit?

A

For cases of constitutional significance

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136
Q

What is a leapfrog appeal?

A

When a high court judgement goes straight to the supreme court and skips the court of appeal when it is obvious that the case will have to go to the supreme court due to its importance

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137
Q

What is access to justice?

A

A basic principle of the rule of law

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138
Q

What is civil legal aid in principle available for?

A

Community care

Actions against public authorities

Mental health and mental capacity

Judicial review

Special educational needs

Asylum claims

Immigration detention

Debt where your home is at risk

Public family law regarding the protection of children

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139
Q

What is the merits test for legal aid if a client needs legal advice?

A

The cost of the legal advice must not be outweighed by the benefit that the client will gain from access to the advice

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140
Q

What is the merits test for legal aid if a client needs legal representation?

A

Whether they are at least as likely to win their case as to lose it

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141
Q

Do you need to pass a means test for legal aid?

A

Yes

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142
Q

What is a litigant in person?

A

Somebody self-representing in court

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143
Q

Can you self-represent in senior courts?

A

Yes

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144
Q

What is a McKenzie friend?

A

A court assistant that is not regulated

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145
Q

When did the United Kingdom officially exist in law?

A

Enactment of the Acts of Union 1800

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146
Q

What is a constitution?

A

A code of rules which regulates the relationship between individual and state

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147
Q

What was the first constitutional document in the UK?

A

Magna Carta 1215

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148
Q

When did the UK monarch become not above the law?

A

With the introduction of the Magna Carta

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149
Q

Which constitutional document is seen as establishing the concept of parliamentary sovereignty?

A

The Bill of Rights 1689

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150
Q

At what point did it become impossible for the monarch to overrule an act of parliament?

A

Bill of Rights 1689

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151
Q

Which constitutional document created an independent salaried judiciary?

A

The Act of Settlement 1700

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152
Q

What are key remaining prerogative powers?

A

Summons and prorogue parliament

Give pardons

Issue passports

Mobilise the armed forces and declare war

Negotiate treaties

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153
Q

What are the sources of constitutional rules?

A

Legislation, case law, constitutional conventions

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154
Q

What is a constitutional statute?

A

Statute that changes the legal relationship between citizen and state in some general overarching manner and enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights

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155
Q

What fundamental constitutional rule did Entick v Carrington establish?

A

That the state cannot exercise power unless that power is expressly authorised by law

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156
Q

What 4 broad principles make up the idea of constitutionalism?

A

Government power must be exercised within legal limits

Power is dispersed between the organisations of the state so power isn’t too concentrated

Government is accountable to the people

The fundamental rights and freedoms of citizens are protected

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157
Q

What are the 2 houses of parliament?

A

Commons

Lords

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158
Q

What is the house of commons?

A

650 members from different political parties

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159
Q

What is the house of lords?

A

Unelected body of appointed life peers, hereditary peers and bishops

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160
Q

Which house is the upper house?

A

Lords

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161
Q

Which types of legislation is the house of commons alone responsible for?

A

Decisions on public finances

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162
Q

What powers does the house of lords have regarding decisions on public finances?

A

They can only consider them but not amend or block

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163
Q

What is the main role of the house of lords?

A

Scrutinise and make amendments to general legislation approved by the house of commons

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164
Q

What constitutional role does the house of lords play?

A

They are an important check on the exercise of government power

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165
Q

What is a ‘government defeat’ in the house of Lords?

A

When the Lords refuse a piece of legislation

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166
Q

What do government defeats usually result in?

A

Amendments to the legislation

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167
Q

What was the constitutional issue with the House of Lords being the most senior court?

A

There was blurry separation of powers between the judiciary and the other 2 bodies of state

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168
Q

Which act fixed the constitutional problems created by the House of Lords being the most senior court?

A

Constitutional reform act 2005

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169
Q

Are the prime minister and cabinet a part of the executive?

A

Yes

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170
Q

Where do the powers of government departments come from??

A

Statute

Common law

Royal prerogative

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171
Q

Where do civil servants derive their powers from?

A

Powers granted to ministers

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172
Q

Who is politically responsible for the powers employed by civil servants?

A

The minister

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173
Q

Which court can intervene if the government has poorly exercised its power?

A

The administrative court

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174
Q

What 3 key changes did the constitutional reform act do to strengthen the judiciary?

A

Lord Chancellor no longer has legal functions really, these are taken over by the Lord Chief Justice

Established the Supreme Court, got rid of the judicial function of the House of Lords

Created the Judicial Appointments Commission for the appointment of judges (so they were no longer appointed on advice from the Lord Chancellor

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175
Q

Who is the guardians of the UK constitution?

A

The supreme court

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176
Q

What is the cabinet manual?

A

Guide to laws, conventions and rules on the operation of government

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177
Q

What are 5 top examples of conventions that relate to the legislature?

A

House of Lords defers to the Commons

House of Lords should not reject government legislation based on an election manifesto

Financial bills should only be introduced by a cabinet minister in Commons

Westminster parliament should not legislate on devolved matters in scotland, wales or northern ireland

House of commons should be consulted before the government embarks on major foreign policy initiatives involving the armed forces

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178
Q

What is the Salisbury-Addison convention?

A

House of Lords should not reject election manifesto based bills at the second reading

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179
Q

What is the Sewel convention?

A

Westminister shouldn’t legislate for the devolved powers

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180
Q

What are 7 examples of conventions relating to the executive?

A

Monarch acts on advice given by ministers

Monarch will not exercise right to refuse royal assent to bills

Monarch will appoint as Prime Minister the leader of the political party which is able to command the confidence of the House of Commons

The Prime Minister chooses the Cabinet Ministers

The Prime Minister and Chancellor of the Exchequer should be MP’s

After a vote of no confidence in Commons, government will resign – general election

Monarch should be asked for consent to proposed legislation affecting the interests of the Monarchy

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181
Q

What are the twin conventions on ministerial responsibility?

A

Collective ministerial responsibility (CMR)

Individual Ministerial Responsibility (IMR)

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182
Q

What are the 2 components of the CMR convention?

A

Minister discussions in cabinet should be confidential

Once policy line has been reached, ministers should maintain a united front (unanimity)

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183
Q

What should a minister do if they can’t maintain unanimity due to conscience?

A

Resign as minister

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184
Q

What is the purpose of the united front?

A

So that parliament has confidence in the government

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185
Q

What happens if a vote of no confidence is passed?

A

The government should resign

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186
Q

What does the IMR convention regulate?

A

How ministers should react if there has been a problem or failing in their department

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187
Q

What 2 considerations determine whether a minister should resign for failings in their department?

A

Degree to which minister was personally aware/involved/responsible

Whether the failing was operational (fault of civil servants) or policy-based (ministers fault)

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188
Q

What is the ministerial code?

A

It reflects the spirit of the twin conventions

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189
Q

Is the ministerial code a convention?

A

No, it is soft-law as it is not enforceable in court

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190
Q

Who is the ultimate arbiter of the ministerial code, who can help decide whether a minister should resign?

A

The prime minister

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191
Q

What are the 7 principles of public life determined in the ministerial code?

A

Selflessness

Integrity

Objectivity

Accountability

Openness

Honesty

Leadership

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192
Q

What 2 conventions relate to the judiciary?

A

Judges must not be politically active

Parliament must not criticise the professional conduct of judges

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193
Q

What will happen if there is a conflict between the law and conventions?

A

Law will prevail

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194
Q

Will conventions be enforceable if acknowledged in legislation?

A

No

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195
Q

What did Montesquieu believe about the separation of powers?

A

If there is no separation, there can be no liberty or constitution

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196
Q

What is the best example of where powers aren’t separated between the executive and legislature?

A

Government ministers are also MP’s

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197
Q

How does the executive contribute to making laws?

A

Proposes primary legislation to be considered by parliament

Drafts secondary legislation

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198
Q

How does the legislature contribute to making laws?

A

Decides whether executive proposals become law

Individual MPs can also propose primary legislation via Private Members bills

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199
Q

How does the judiciary ‘make law’

A

Interprets parliaments intentions

Develops the common law

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200
Q

What constitutional principle did Shaw v Director of Public Prosecutions develop?

A

House of Lords held that courts had residual power to enforce supreme and fundamental purpose of the law, to conserve not only the safety and order but also the moral welfare of the state

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201
Q

What 2 key points about judicial law making did Gillick develop?

A

Judges in the most senior courts are often required to make decisions in the absence of any explicit statutory or common law authority

A feature of the common law is that it develops with the changing political and cultural climate

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202
Q

What happened in Airedale NHS Trust?

A

Court granted a declaration to allow withdrawal of treatment to somebody who was in a vegetative state due to the difference between acts and omissions in the law of homicide

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203
Q

What criteria were developed in Gillick?

A

Gillick competence

Whether a minor is competent to consent to medical treatment

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203
Q

What did the courts overturn in RvR?

A

That husbands could not rape their wives

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204
Q

What did Airedale NHS Trust emphasise the importance of?

A

That where a case raises wholly new moral and social issues, judges shouldn’t seek to develop law reflecting their own moral stance when society as a whole is substantially divided on the relevant moral issues

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205
Q

What happened in the Burmah Oil case?

A

Oil fields in Burma were destroyed by British forces during the second world war. Law Lords decided compensation should be paid to Burmah Oil… Parliament passed the war damage act and exempted the Crown from paying compensation for property damage or destruction in war

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206
Q

What are the 3 levels of delegation over subordinate legislation?

A

No scrutiny

Negative instruments

Affirmative instruments

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207
Q

What is a negative instrument?

A

An instrument that can become law without a debate or vote in parliament… they can be opposed and in theory rejected but not amended by parliament

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208
Q

What overlap is there in terms of judicial functions of the executive?

A

Home Secretary has some minor sentencing powers the conventionally shouldn’t really be exercised

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209
Q

Are tribunals administered by the executive?

A

No, that stopped in 2007

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210
Q

What is the attorney generals main role?

A

Chief legal advisor to the executive

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210
Q

What threat does the Attorney General pose to the separation of powers?

A

They are an MP but they also advise on the law so there is a problem of overlap with the judiciary

Legal advice to the government should probably be independent

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211
Q

What did the Lord Chancellor do pre-2006 constitutional reform act?

A

Was head of judiciary, speaker or president of house of lords and also had a cabinet post and did all the judicial administration

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212
Q

What does the Lord Chancellor do post-2006 constitutional reform act?

A

No longer head of judiciary or speaker/president of house of lords

Still has cabinet post

Renamed Secretary of State for justice… manages the executive administration of justice system

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213
Q

What act solidified the independence of the judiciary?

A

The constitutional reform act

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214
Q

Can the Lord Chancellor and other Crown ministers seek to influence judicial decisions?

A

No

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215
Q

Do judges have security of tenure?

A

Yes

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216
Q

Which judges have security of tenure?

A

Crown

High court

Court of appeal

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217
Q

When can a judge be dismissed?

A

During ‘bad behaviour’ by the monarch following an address presented by both houses of parliament

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218
Q

What is the statutory retirement age for judges?

A

70

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219
Q

Can full-time judges sit in the house of commons?

A

No

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220
Q

Can courts inquire into proceedings in Parliament?

A

No

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221
Q

Are judges immune from legal proceedings?

A

Yes, as long as whatever it is they did was in a court of justice

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222
Q

Are magistrates liable in civil law?

A

Only for acts outside their jurisdiction if they acted in bad faith

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223
Q

What are the 2 purposes of judicial review?

A

Prevent abuse of power by the executive

Uphold individual rights

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224
Q

What does judicial review technically examine?

A

The legality of a decision

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225
Q

Can judges generally review primary legislation?

A

No

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226
Q

In what 2 exceptional circumstances, can judges review primary legislation?

A

Where the act was inconsistent with EU law or retained EU law

If the Act of Parliament is incompatible with the ECHR they can make a declaration

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227
Q

Can judges challenge secondary legislation?

A

Yes

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228
Q

Is anything truly non-justicible in the modern era?

A

No, the modern view is most things are reviewable, but there can be a very light touch

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229
Q

When did Wales join the UK?

A

1535-1542

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230
Q

When could the beginnings of the UK be traced back to?

A

1707, when Scotland joined

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231
Q

What acts joined Ireland to the rest of the UK?

A

The acts of union

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232
Q

When did Ireland join the UK?

A

1801

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233
Q

What are all the devolved powers?

A

Scottish Parliament/Government

National Assembly for Wales/Welsh gov

Northern Ireland Assembly/Executive

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234
Q

What is devolved legislation?

A

Legislation produced by the three devolved parliaments that cannot be created without the powers granted by an act of UK Parliament

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235
Q

What is a devolved matter?

A

An area of government where decision making has been delegated by the UK parliament to a devolved administration

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236
Q

What is a reserved matter?

A

Decisions made by Westminster, even though they have effect in Wales, Scotland and Northern Ireland

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237
Q

What are good examples of reserved matters?

A

Immigration, defence, foreign policy

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238
Q

How does money go to the devolved powers?

A

The power belongs to HM Treasury… they give budgets for free spending to the devolved powers

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239
Q

How is funding for devolved administrations determined?

A

Spending reviews

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240
Q

What is the memorandum of understanding?

A

A series of non-legally binding principles which underlie relations between the devolved administrations and the UK

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241
Q

What 4 things does the joint ministerial committee do?

A

Consider non-devolved matters which impinge on devolved responsibilities

Discuss respective treatment of devolved matters within their administrations

Keep arrangements for liaison between the UK government and devolved administrations under review

To consider disputes between the administrations

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242
Q

Can the UK legislate on devolved matters in Scotland?

A

Yes, if it wants to but it doesn’t by convention

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243
Q

Is wales a separate legal jurisdiction from England?

A

No

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244
Q

Can the UK legislate in wales if it wants to?

A

Yes, but it doesn’t by convention

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245
Q

How should the UK go about legislating in a devolved power when they shouldn’t by convention?

A

Seek a legislative consent motion

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246
Q

Does the supreme court have jurisdiction over the devolved powers?

A

Yes

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247
Q

What key role does the supreme court play regarding the devolved powers?

A

It rules on whether they have exceeded their scope

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248
Q

What is the formal school of thought on the rule of law?

A

Legal procedure must be clear and certain

Law must be prospective

Law must be clear

Law should be applied equally

Judiciary must be independent

Moral content of laws is not determinative of whether the rule of law can be said to exist in a certain jurisdiction

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249
Q

What is the substantive school of thought on the rule of law?

A

Same formal requirements from the formal school of thought

plus

Without respect for fundamental human rights and freedoms, the rule of law cannot be said to exist

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250
Q

Is the rule of law officially defined somewhere?

A

No

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251
Q

What are Lord Binghams 8 fundamental principles of the rule of law?

A
  1. Accessible, clear and predictable
  2. Legal issues should be resolved through legal processes
  3. Law apply equally to all
  4. Law protect human rights
  5. Legal access without inordinate delay or expense
  6. Public officials should exercise powers in good faith, within their limits
  7. Legal and adjudicative processes should be fair
  8. State should comply with its obligations under international law
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252
Q

What is the legality principle?

A

Parliament cannot be seen to have intended to restrict important rights and freedoms unless this is made clear

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253
Q

Can the courts review primary legislation?

A

No

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254
Q

Can the courts assess whether public bodies have complied with provisions in an Act?

A

Yes

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255
Q

Can courts assess whether devolved legislation has been made in accordance with powers granted under the parent act?

A

Yes

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256
Q

Can the courts review whether the gov has breached a common law constitutional right or has lawfully exercised a prerogative power?

A

Yes

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257
Q

What is legal certainty?

A

Fundamental feature of ROL

People in society should be able to know what they can and cannot do

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258
Q

What are the exceptions to equality before the law?

A

Monarch

Judges in higher courts can’t be sued for their in-court actions

Parliamentary privilege

Diplomatic immunity

Children

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259
Q

Can parliament override fundamental rights?

A

Yes, as long as they do so clearly and specifically the judiciary won’t be able to say anything

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260
Q

Can the UK derogate from the ECHR?

A

Yes, but only in accordance with the law

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261
Q

Would the court defer jurisdiction or give light touch when asked to review whether or not a public emergency existed?

A

Yes

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262
Q

How do the ROL and discretionary powers interact?

A

The ROL helps to control the exercise of discretionary power

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263
Q

In recent years has the judiciary been more or less willing to review discretion?

A

More willing

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264
Q

Is the judiciary likely to defer if statute says ‘if x has reasonable cause to believe’ or would they require some proof or evidence?

A

Liversidge is now widely criticised as too much deference, reasonable belief would likely require at least some evidence as seen in Inland revenues

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265
Q

In judicial review, is reasonable cause to believe more likely to be reviewed as an objective or subjective test?

A

Objective

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266
Q

What is the Padfield principle??

A

Failure to exercise discretion at all, if granted by statute, is potentially unlawful

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267
Q

Finish this sentence..

For the exercise of discretion to be lawful…

A

it must not frustrate the policy of purpose of the statute which contains the discretionary power

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268
Q

Does the rule of law require that discretion is constrained to some degree?

A

Yes, otherwise it would be completely legally unfettered

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269
Q

What are 2 examples of how discretion is constrained?

A

Sentencing guidelines

Defendants right of appeal to a senior court

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270
Q

What does Lord Bingham think about the volume of legislation that there currently is?

A

It threatens the first element of the ROL, that the law should be accessible, clear and predictable

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271
Q

Does the current publicly available law resources such as legislation.gov do a good job of upholding that law should be accessible, clear and predictable?

A

No, it isn’t up to date, and most lay people don’t have access to Westlaw etc

272
Q

What does Lord Bingham think about dissenting judgements and the ROL?

A

That as long as the majority judgement is clear the ROL has been upheld

273
Q

What does Lord Bingham think about when the Court of Appeal and Supreme Court don’t come to a clear decision?

A

They have failed to perform its duty in accordance with the principle of accessibility and certainty

274
Q

Does Lord Bingham think that the ROL can be upheld if the moral content of laws are unconscionable?

A

That the ROL inherently encompasses concepts of fairness/justice… if laws are for example, ‘savagely repress’ then it cannot be said to reflect the ROL

275
Q

What is the biggest bar to obtaining justice?

A

It is expensive

276
Q

Is the right of access to the courts inherent to the ROL?

A

Yes

277
Q

Why is it a problem for ROL if people are only willing to pursue cases that win?

A

Because it stifles the development of the law

278
Q

Is the right to a fair trial a requirement of the ROL?

A

Yes

279
Q

What 3 threats to the right to a fair trial have been identified by the campaigning organisation Liberty?

A

Fast-track extradition treaties

Anti-Social Behaviour orders and other civil orders which blur criminal and civil law

Secret courts and secret evidence in the name of National Security

280
Q

How does AI and automated decision making pose a threat to the ROL?

A

Because it is impossible to appeal a decision made by an algorithm if you can’t know what factors were taken into account or what the reasoning was

281
Q

What is the supreme form of law in the UK?

A

Acts of Parliament

282
Q

What are the 3 basic rules of parliamentary sovereignty according to Dicey?

A
  1. Parliament is the supreme law making body
  2. No parliament may be bound by a predecessor or may bind a successor
  3. No person or body may question the validity of an Act of Parliament
283
Q

Are there any legal limitations on what types of laws parliament can make?

A

No

284
Q

Would it be illegal if parliament enacted laws contrary to the Geneva convention?

A

No, parliament is supreme

285
Q

Can parliament legislate for territory beyond the jurisdiction of the UK, even if it produces a conflict with international law?

A

Yes, it is supreme

286
Q

Can parliament pass retrospective laws?

A

Yes, famously the War Damage Act

287
Q

What is express repeal of a law?

A

Legislation specifically states its intention to replace an earlier act

288
Q

What is implied repeal?

A

If a new act is wholly inconsistent with a previous act then the previous act is repealed to the extent of the inconsistency

289
Q

What will happen if statute attempts to entrench itself?

A

The entrenchment clause will not be upheld

290
Q

Is the substance of law reviewable by the courts?

A

No

291
Q

Can the judiciary review procedural irregularities in how statute came to be enacted?

A

No

292
Q

What is the orthodox Diceyan view of entrenching laws by manner and form?

A

That this requirement would not be binding on a successor Parliament

293
Q

Has entrenchment in manner and form ever been upheld by the judiciary?

A

Yes, in Australia (these acts had been created by the UK) where the abolition of the upper chamber was said to require referendum approval..

However this was technically a subordinate legislature

294
Q

What is the ‘referendum lock’ in the context of the EU?

A

The European Union Act 2011 tried to say a referendum needed to be held before further amendments could be made to the founding Treaties of the EU

It was never tested

295
Q

In the current day, is parliamentary sovereignty diminishing or expanding?

A

Diminishing

296
Q

How are ouster clauses likely to be interpreted by the courts?

A

They will do whatever they can to bend interpretation so as not to uphold them

297
Q

Why does the UK incorporate international law into its own domestic laws?

A

Because UK parliament is supreme, even over international laws so it must incorporate to be safely bound

298
Q

What was incorporated into UK law via the European Communities Act?

A

The Treaty of Rome

299
Q

Which treaty established the European Union?

A

The Maastrict treaty

300
Q

How did EU law threaten parliamentary sovereignty?

A

It said that EU law was supreme over domestic law

301
Q

What does the primacy of EU law mean?

A

EU law was supreme over UK law

302
Q

How did it come to be that EU law was supreme over UK domestic law?

A

Because the UK subscribed to principles laid down by the ECJ, and a case there stipulated that EU law cannot be overridden by national law

303
Q

Did the European Communities Act impliedly repeal/override statutes that weren’t compatible with EU law?

A

Yes

304
Q

Regarding implied repeal of statutes prior to the European Communities Act, why was this ok for the rule of law?

A

Because its the same as any other implied repeal.. it is the choice of the sovereign parliament to subscribe to those new laws

305
Q

Did the European Communities Act state that any UK statutes enacted after it, that were incompatible with EU law would have effect subject to EU law?

A

Yes

306
Q

Why was the ECA problematic for parliamentary sovereignty?

A

Because it ran counter to the principle that parliament cannot bind itself by stating that the ECA would hold over subsequent acts of parliament if there were discrepancies

307
Q

What presumption did the courts make in order to maintain allegiance to parliamentary sovereignty despite difficulties presented by the ECA?

A

Parliament clearly intended to draft new legislation to be compatible with EU law so inconsistencies would be an error of the draftsman

308
Q

Why did Factortame No2 threaten parliamentary sovereignty??

A

Because for the first time, the house of lords, with advice from the ECJ, suspended an act of parliament (going against it) in favour of EU law

309
Q

Why did some people say Factortame No2 wasn’t a true hinderance on parliamentary sovereignity?

A

Because parliament had voluntarily signed up to a limitation on its own sovereignty

310
Q

Why were the obiter points in Thoburn made by Laws LJ so significant?

A

Because Laws LJ said that Factortame had created an exception to the doctrine of implied repeal

Ordinary and constitutional statutes were distinguished for the first time

311
Q

Why does constitutional statues conflict with orthodox Diceyan view?

A

Because it means not all statutes are equal

312
Q

Post-Brexit, what is the prevailing view on how Parliament can bind itself?

A

It can bind itself to something like the EU, for as long as it wishes to be bound by it.

It is still sovereign, because it can remove those limitations

313
Q

What is the royal prerogative?

A

Residue of discretionary or arbitrary authority which is legally left in the hands of the Crown

314
Q

Who used to own and exercise all the prerogative powers?

A

The Monarch

315
Q

Can prerogative powers be replaced by statutory powers?

A

Yes

316
Q

Can prerogative power be expanded?

A

No

317
Q

What are the 3 broad types of prerogative power?

A

Ministerial/executive

Monarchs constitutional prerogatives

Crowns legal prerogatives

318
Q

What are the 3 main broad executive prerogative powers?

A

Foreign affairs

Armed forces/emergencies

Judicial mercy

319
Q

What important government functions are under the ‘foreign affairs’ power?

A

Recognising other sovereign states and their representatives

Making and ratification of treaties

Diplomacy

Passports

Governance of British Overseas Territories

320
Q

Is approval of parliament required for treaties?

A

No

321
Q

What is meant by the prerogative of mercy?

A

Home secretary can issue pardons to those convicted of criminal offences

322
Q

What personal prerogatives of the monarch still technically exist?

A

Appointing the prime minister

Assent to legislation

Right to prorogue parliament

323
Q

What are the remaining legal prerogatives?

A

Crown is not bound by statute unless express words are used or it is obviously inferred

Immunity from some litigation – e.g., Crown cannot be in contempt of the court and sovereign is immune from being sued or prosecuted

324
Q

In what 4 ways can prerogative power be controlled?

A

Application of public law (judicial review of jurisdiction)

Political pressure and public life

Overriding effect of statute (legislation trumps the prerogative)

By changes to convention over time

325
Q

How is crown power legitimated?

A

Through recognition in the common law

326
Q

When could a prerogative power not be said to exist?

A

When it hasn’t been accepted by the courts, there is no precedent

327
Q

Were the courts historically able to adjudicate upon or review what the scope of a prerogative power was?

A

Yes

328
Q

What is the De Keyser principle?

A

Statute is supreme over prerogative powers

329
Q

What was the principle outlined by Miller 1?

A

Leaving the EU couldn’t be triggered by prerogative power when the effects and consequences were so significant

Had to be sanctioned by primary legislation

330
Q

When did the courts feel prepared to review HOW the government used its prerogative powers for the first time?

A

GCHQ

331
Q

What happened in GCHQ?

A

Margaret Thatcher tried to ban trade union membership at gov listening base in Cheltenham using her power to regulate the working terms and conditions of the Civil Service

Courts held she had the power, but the manner in which she used it was reviewable

332
Q

What was the rationale behind the judgement in GCHQ?

A

Whether the power came from the prerogative or statute, either way the judiciary is challenging the manner of exercise by the executive which is not an act of sovereign

333
Q

What was the outcome of GCHQ?

A

Ultimately, Thatcher won by saying it was in the justifiable public interest not to consult in advance of her use of the power

334
Q

What are the main prerogative powers that aren’t amenable to the judicial process?

A

Making treaties

Mercy

Dissolution of Parliament

Defence of the Realm

Granting of Honours

Appointment of ministers

335
Q

Is the manner of the exercise of prerogative power just as reviewable as the way statutory powers are exercised?

A

Yes

336
Q

Is the remit of judicial review expanding or diminishing over higher policy prerogative powers?

A

Expanding

337
Q

Is reviewing passport denial likely to be within the remit of judicial review?

A

Yes

338
Q

What does it mean that judges will look at the substance/nature of an issue surrounding prerogative powers to decide if it is justiciable?

A

They won’t look at the source of the power e.g., the Crown

They’ll look at the substance of the power e.g., the executive is making decisions about passports which is more of an executivey-type administrative activity is implemented not a Crown high policy one

339
Q

In what capacity has the prerogative power of mercy been judicially reviewed?

A

Not whether a mercy should have been granted

But whether a mercy was capable of being granted in that circumstance (e.g., a conditional mercy was also possible)

340
Q

Has legitimate expectation of diplomatic assistance been reviewed by the courts before?

A

Yes, but with a light touch

341
Q

What did the courts say was a reviewable matter of higher policy (diplomatic assistance)

A

That the applicant had the right to at least be considered, and the courts could examine whether or not the foreign office at at the minimum considered the applicants predicament in light of all relevant factors

342
Q

Are military actions non-justicable?

A

Yes

343
Q

Are operational military issues justifiable?

A

Yes

344
Q

What type of operational military issues might be justicible?

A

Provision of military equipment and training

345
Q

When will military issues be justiciable?

A

When failings are remote from the pressures and uncertainties of the battlefield

346
Q

Would dismissal from the armed forces be a justiciable issue?

A

Yes, where employment/career prospects are at issue alongside the rights of citizens

e.g., dismissal for being gay

347
Q

What 3 European communities eventually lead to the EU?

A

European coal and still

European economic

European Atomic Energy

348
Q

When was the EU established?

A

1993

349
Q

What Act gave EU law effect in the UK?

A

The European Communities Act 1972

350
Q

What Act withdrew the UK from the EU?

A

European Withdrawal Act EUWA 2018

351
Q

What are the 6 main sources of EU law?

A

Primary sources: EU treaties

Second sources: regs, directives, decisions

Tertiary acts

Case law

International agreements (treaties)

Non-binding acts

352
Q

What are the 2 primary EU treaties?

A

Treaty on the Functioning of the EU (TFEU)

Treaty of the EU (TEU)

353
Q

Is the ECHR an EU treaty?

A

No, it is overseen by a completely different organisation with many members that are not even in the EU

354
Q

What does it mean if an EU regulation is directly applicable?

A

That the regulation applies to the member state without those member states having to enact their own legal measures to implement or give effect to them

355
Q

Who is an EU directive binding on?

A

To each member state which is addressed in it

356
Q

What scope of power is left to the member states included in an EU directive?

A

They have to follow the directive, but have choice as to the form and methods

357
Q

What is the deadline to implement an EU directive if no deadline is specified?

A

20 DAYS

358
Q

What is the standard specified EU directive deadline?

A

2 years

359
Q

Who are EU decisions binding on?

A

Whoever it addresses

360
Q

When will an EU decision be considered to be secondary legislation

A

If it was adopted using a legislative procedure

361
Q

What are the 2 forms of EU tertiary act?

A

Delegated Act (EU secondary legislation which delegates power to the european commission to adopt delegated acts to supplement to amend that secondary legislation)

Implementing Acts: legally binding EU acts gives european commission power to adopt acts for implementing binding EU acts where uniform conditions for implementation are needed

362
Q

What are the 2 principle EU courts?

A

European court of justice

General court

363
Q

Is the European Court of Human rights an EU court?

A

No, ECHR has nothing to do with the EU

364
Q

What does it mean when a National court makes a preliminary reference to the European Courts?

A

Court of justice makes a preliminary ruling, the case then returns to the national court to apply the ruling from the court of justice

365
Q

Does the EU have legal personality?

A

Yes

366
Q

Can the EU enter into international agreements and bind member states?

A

Yes

367
Q

What types of EU acts are non-binding or soft law?

A

Recommendations

Opinions

Communications

Declarations

Notices

Programmes

Resolutions

368
Q

Will EU law take effect over constitutional law of member states?

A

Yes

369
Q

Is the effect of primacy of EU law to void, invalidate or disapply contradictory national law?

A

Disapply

370
Q

What currently governs EU law in the UK?

A

The withdrawal agreement continues to provide for some EU law in the UK

The rest of EU law which is no longer preserved by the withdrawal agreement is now governed by a separate legal regime

371
Q

What is the Windsor framework?

A

There is still an open border between Northern Ireland and the Republic of Ireland after EU withdrawal

372
Q

Can UK courts still disapply UK statutes that conflict with EU law? *IN TRANSITION PERIOD

A

Only that EU law which is preserved by the withdrawal agreement after the end of the transition period

373
Q

What UK law is still interpreted in conformity with the case law of the Court of Justice? *IN TRANSITION PERIOD

A

Withdrawal agreement provisions and any EU law preserved by them

374
Q

To what extent must conformity with case law from the Court of Justice be maintained for cases decided outside of the transition period regarding EU status contained within the withdrawal agreement? **IN TRANSITION PERIOD

A

Due regard only

375
Q

For what matters can the UK courts continue to make preliminary references to the Court of Justice?

A

For the rights of EU citizens and their family members in cases commencing 8 years before the end of the transition period

In relation to EU law preserved by the protocol in Northern Ireland

376
Q

What 2 categories of legislation continue to have effect in the UK post EU?

A

EU-derived domestic legislation

Direct EU legislation (any EU reg still in force b4 the end of the transition period)

377
Q

What is post-transition retained EU law also referred to as?

A

Assimilated law

378
Q

Does the term assimilated EU law apply to law retained by the EUWA 2018?

A

No

379
Q

Does the principle of supremacy of EU law still apply in relation to the assimilated direct EU law?

A

No

380
Q

What interpretative obligation do the courts currently have in relation to assimilated direct EU legislation?

A

To interpret in a way that is compatible with domestic enactments so far as it is possible to do so

381
Q

What happens if UK courts cannot currently interpret assimilated direct EU legislation compatibly? What approach should they take?

A

EU assimilated law will be subject to domestic enactments

E.G., domestic overrides is

382
Q

When does direct EU assimilated law take precedence over UK law?

A

When the government specifies that a provision in legislation is to be excepted

383
Q

What interpretative obligation to UK courts have for direct assimilated UK law when governments have specified that primacy of EU law should continue for that provision?

A

To read and give effect to UK law in a way that is compatible with the assimilated direct EU legislation

384
Q

What if the UK courts cannot read assimilated direct EU legislation in a way that is compatible with UK law?

A

Domestic enactment will be subject to the assimilated direct EU legislation such that EU overrides

Issue an incompatibility order

385
Q

What might the contents of an incompatibility order for domestic law and direct assimilated UK law contain?

A
  1. Explain the effect of the provision
  2. Delay the coming into force of the incompatibility order itself
  3. Remove or limit any effect of the operation of the relevant provision before the coming into force of an order
386
Q

Can both primary and secondary legislation amend assimilated EU law?

A

Yes, but secondary is subject to conditions

387
Q

What extra powers did the EUWA 2018 and the REULA 2023 provide government ministers regarding EU law?

A

They can make regulations to deal with deficiencies in assimilated EU law

They can restate, reproduce, revoke or replace assimilated EU law

They can update EU law

388
Q

When will government ministers no longer have powers to restate, reproduce, revoke or replace assimilated EU law?

A

23 June 2026

389
Q

What EU case law has been assimilated?

A

That which existed at the end of the transition period

390
Q

Is the Supreme Court still bound by retained EU case law?

A

No

391
Q

Are the UK courts and tribunals still able to make preliminary references to the Court of Justice on questions of assimilated EU law?

A

No

392
Q

Is the Court of Appeal still bound by assimilated EU case law?

A

No

393
Q

Is the Court Martial Appeal court still bound by assimilated EU case law?

A

No

394
Q

What test do the courts currently have to use to decide whether to depart from assimilated EU case law?

A

Same as supreme court

395
Q

In future, how will the test of whether to depart from assimilated EU case law change?

A

Courts will have to have regard to:

  • fact that decisions of foreign court are not binding
  • changes of circumstances which are relevant to the retained EU case law
  • extent to which the assimilated EU case law restricts the proper development of domestic law
396
Q

In future, something will replace the power to make preliminary references to the Court of Justice in relation to assimilated EU law, what is it?

A

Courts and other law officers can make references to the supreme court and other domestic appeal courts

397
Q

Can assimilated EU law be amended by legislation?

A

Yes

398
Q

Are the supreme court and court of appeal bound by case law decided before the end of the brexit transition period?

A

No

399
Q

Under a dualist system, when is international law enforceable against the UK state?

A

When a claim is made in an international court

When the UK has incorporated international rules into domestic law

400
Q

What is the purpose of the HRA?

A

Incorporates ECHR into domestic law

401
Q

What is the constitutional effect of the HRA?

A

Creates a positive statement of values as a key part of the UKs constitution

402
Q

Prior to the HRA, why did the UK continue to be publicly embarrassed?

A

B/C all their human rights cases were aired in public in the ECtHR because they weren’t enforceable within the UK

403
Q

What is Article 1?

A

ECHR seeks to protect civil/political/some social rights by requiring all contracting states to secure the specified rights and freedoms for their people

404
Q

What does article 15 apply to?

A

Derogations

405
Q

What does article 57 apply to?

A

Reservations

406
Q

What does articles 2-14 ECHR cover?

A

Lists the freedoms and rights

407
Q

What rights are absolute

A

3: Torture
4: slavery and forced labour
7: no punishment without lawful authority

408
Q

Which rights are limited?

A

2: life

5: liberty and security of person

6: fair trial and fair legal process

409
Q

Which rights are qualified?

A

8: private and family life
9: thought, conscience and religion
10: expression
11: assembly and association

410
Q

Which 3 requirements must be met for the state to interfere with a qualified ECHR right?

A

Must be prescribed by or in accordance with law

Pursuit of legitimate aim

Necessary and proportionate in democratic society

411
Q

Do UK courts have to take relevant ECtHR caselaw into account when interpreting the HRA?

A

Yes

412
Q

What is meant by a positive obligation in relation to the state and human rights?

A

Duty to prevent the violation of human rights actively

413
Q

Does the state have to take preventative measures to protect an individual whose life is at risk from the criminal acts of another private individual?

A

Yes if:

They knew or ought to have known that there was a real and immediate risk and they failed to take measures which judged reasonably could have avoided that risk

414
Q

What is the limit on positive obligation?

A

Excessive burden

415
Q

What is the margin of appreciation doctrine?

A

That the primary responsibility for the protection of human rights lies with the contracting parties themselves, thus, they have some discretion because they know their country best

They are subject to supervision by the ECtHR

416
Q

What is the Principle of Proportionality in the context of ECHR?

A

Search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individuals fundamental rights

417
Q

Is it unlawful for public authorities to act in a way that is incompatible with Convention rights?

A

Yes

418
Q

What 3 interpretative obligations do the courts have in relation to human rights law?

A

In determining legal questions, courts must take into account relevant ECHR case law from the ECtHR

Legislation must be read in a way that is compatible with ECHR rights

If not compatible, court may make a declaration of incompatibility

419
Q

What is the mirror approach?

HRA/ECHR

A

While ECtHR is not binding, UK courts should mirror their decisions

420
Q

In what circumstances will the mirror approach be disregarded?

HRA/ECHR

A

When Strasbourg decisions don’t appreciate or accommodate aspects of our domestic process

421
Q

What statutory defences exist for a public authority acting in a way which is incompatible with a convention right?

A
  • If it is required by primary legislation
  • if it is acting to give effect to or to enforce incompatible primary or subordinate legislation
422
Q

What 3 types of bodies are recognised as public bodies?

hra/echr

A

Core public
Hybrid/functional
Private bodies

423
Q

What types of bodies are core public authorities?

A

Central gov departments
HMRC
Police

424
Q

What types of bodies are functional/hybrid public authorities?

A

A body that is private in nature but performing a public function

Housing associations, care homes

425
Q

What factors will the court consider in determining whether X is carrying out a function of a public nature?

A

Public funding

Exercising statutory power

Taking the place of central gov/authorities

Providing a public service

426
Q

What 2 things must an applicant show to bring a claim under HRA?

A
  1. They are against a public authority
  2. They have standing to bring the claim
427
Q

How can you have standing for an HRA claim? What is the test?

A

Victim test: anyone who is claiming to be a victim of a violation

**must also be directly effected by the violation

428
Q

Can corporations make an HRA claim?

A

Yes

429
Q

What type of entity do you have to be to bring an HRA claim?

A

A person – natural or legal

430
Q

When can an organisation/group bring an action under HRA?

A

Only when their rights as an organisation have been violated

431
Q

What is the deadline to commence an HRA claim?

A

1y of the date of the act complained of

432
Q

Can the deadline for an HRA claim be extended?

A

Yes, if the court considers it equitable in all circumstances

433
Q

If an alleged violation is ongoing, when does the clock start running for the deadline to apply for an HRA violation?

A

When the violation stops

434
Q

Are HRA claims within a wider judicial review application subject to JR time limits or HRA time limits?

A

JR

435
Q

Is Westminster Parliament excluded from liability under the HRA?

A

Yes, to protect parliamentary privilege and sovereignty

436
Q

How far can courts go in interpreting legislation to be compatible with HRA?

A

Very far, they are under a duty to try and find a way to twist words basically

But must not cross boundary between interpretation and amendment

437
Q

When will UK courts refrain from taking a lot of liberty in interpreting UK statute as human rights compatible?

A

When it would bring a major change in law with far-reaching consequences

438
Q

Can a court read words into legislation to be HRA compatible and change the ordinary meaning of legislation?

A

Yes

439
Q

In what 5 circumstances did the law lords says that their interpretative power for human rights compatibility would go too far?

A

Changes the substance of provisions completely

Runs counter to a fundamental feature of the legislation

Contradicts provisions in the legislation

Repeals or deletes language used

Court ends up making decisions for which it is not equipped

440
Q

What 5 liberties are courts willing to take to interpret a provision as human rights compatible?

A

Interpret in other ways even if language is clear

Adopt a linguistically strained interpretation

Read down (adopt narrow meaning)

Read in words/imply provisions

Make the declaration of incompatibility a last resort

441
Q

What is a section 3 interpretation?

A

To be compatible with human rights law

442
Q

Is a declaration of incompatibility binding?

A

No

443
Q

Does a declaration of incompatibility effect the continuing operation of the provision?

A

No

444
Q

Does the court have to make a declaration of incompatibility?

A

No

445
Q

Are ministers legally required to change legislation after a declaration of incompatibility?

A

No

446
Q

How does the constitution catalyse the statutory defence to the HRA?

A

It means that legislation will trump the convention so the public authority has a defence if they were prevented from doing smth because of an Act

Parliamentary sovereignty reigns supreme

447
Q

What will happen if a public body tries to rely on an act of parliament as a statutory defence to HRA violations but the court is able to read it compatibly?

A

The defence will disappear, liability is incurred

There will be a remedy for the applicant

448
Q

What happens if the public body uses the first statutory defence in an HRA claim and the court can’t use its s.3 power?

A

They can make a declaration of incompatibility

There will be no remedy

Claimant can go to ECtHR

449
Q

Explain the process of domestic enforcement of human rights claims?

A
450
Q

What remedies are available for human rights claims?

A
  1. Any relief, remedy or order which is just and appropriate/within judge powers
  2. Damages, declarations, injunctions, quashing orders, prohibitory orders, mandatory orders
451
Q

What is the standard expedited remedial action the government can take after DOI?

A

Draft amending order laid before parliament for 60 days before being approved by the houses

452
Q

What is the urgent expedited remedial action the government can take after DOI?

A

Order may be laid before parliament for approval after it is made

453
Q

Does a human rights victim have to be a national of the state concerned?

A

No, just anybody within jurisdiction at that time

454
Q

Will ECHR jurisdiction ever extend extra-territorialy?

A

It can, if there is sufficient control by the state in that extra-territorial jurisdiction

e.g., diplomats, military occupation of an area

455
Q

Which rights can not be derogated from?

A

2: Life (except deaths from lawful acts of war)
3: Torture
4: Slavery and forced labour
7: No punishment without law

456
Q

When can a state derogate from ECHR?

A

Public emergency threatening the life of the nation to extent that is strictly required

457
Q

Is the death penalty allowed in the ECHR?

A

No

458
Q

In what 3 circumstances is deprivation of life not a contravention of ECHR?

A

Defence of any person from unlawful violence

To effect lawful arrest or prevent escape of a person lawfully detained

In action lawfully take to quell riot or insurrection

459
Q

Is article 2, right to life an absolute right?

A

No

460
Q

What is article 2?

A

Right to life

461
Q

What limits on the exceptions to the rights to life exist?

A

The use of force must be no more than absolutely necessary and proportionate to achieve a legitimate aim

462
Q

What duty is said to be imposed on the state by article 2?

A

Investigative duty for all situations where the state directly takes a life

463
Q

Does the duty to extend go extra-territorially?

A

Yes

464
Q

Is there a duty to investigate a death caused by a third party not state agents?

A

Yes

465
Q

Is there a duty to investigate a death caused by a third party who aren’t state agents if there has already been a criminal investigation and internal investigation?

A

Yes, investigation must be:

Public

Independent

Involve full participation of the family

466
Q

What 3 characteristics must an investigation have to fulfil the duty imposed under article 2?

A

Public

Independent

Involve full participation of the family

467
Q

What positive obligations are imposed on the state by article 2?

A

Have criminal justice systems which punish and deter homicide

Take preventative measures to protect individuals when their life is at risk from:
- homicide
- suicide

467
Q

When will positive obligations with regard to article 2 be triggered?

A

If they knew or ought to have known about a real and immediate risk

468
Q

Is withdrawal of treatment for a patient in persistent vegetative state a breach of article 2?

A

No, there is no obligation to prolong life when prognosis is very poor

469
Q

Can the state be liable if a mental patient commits suicide?

A

Yes, if they knew or should have known there was a real risk

470
Q

Is article 3 an absolute right?

A

Ys

471
Q

What is article 3?

A

Torture

472
Q

What factors are taken into consideration when trying to determine whether treatment was inhumane/degrading?

A

Nature/context

Manner of execution

Duration

Physical and mental effects

Impact positive and negative on health of person

473
Q

What is the definition of torture?

A

Aggravated, deliberate and cruel form of treatment or punishment

474
Q

Do the courts construe torture widely or narrowly?

A

They try and preserve the oomf of the word torture, and unless something is clearly torture they will label it inhumane/degrading treatment

475
Q

Would failure to release a prisoner on a life sentence for chemotherapy at a hospital amount to inhumane treatment?

A

No

476
Q

Is the positive obligation for torture absolute?

A

No, only the negative one

477
Q

When will the claimant be able to establish a claim under a positive obligation for article 3?

A

When the authorities knew or ought to have known of his risk of article 3 breach

478
Q

Historically, was the death penalty allowed under ECHR?

A

Yes

479
Q

What is the extra-territorial effect of article 3?

A

You can’t deport somebody if doing so will put them in jeopardy of an article 3 violation

480
Q

What is the extension of the extra-territorial effect of article 3?

A

You can’t deport someone if they are likely to face an article 3 violation by non-state actors

481
Q

Is there an investigative duty under article 3?

A

Yes

482
Q

Are the factors to determine ill-treatment under article 3 objective, subjective or both?

A

Both

483
Q

What is article 5?

A

Liberty and security of the person

484
Q

Is a restriction on liberty engaged by article 5?

A

No, it has to be a deprivation

485
Q

What factors will the court look at to determine the difference between restriction and deprivation of liberty?

A

Concrete situation of the person

Type

Duration

Effects

Manner of implementation

486
Q

Is restriction distinguished from deprivation by examining degree and intensity or nature and substance?

A

Degree and intensity

487
Q

When is kettling not an article 5 breach?

A

Proportionate

Not imposed arbitrarily

Least intrusive/most effective way to control

To avoid real risk of serious injury/damage to property

488
Q

What 2 conditions must be satisfied such that there won’t have been an article 5 breach?

A

Prescribed by clear, predictable law (CASE OR STATUTE)

Be justified by one of the limitations provided for in the ECHR

489
Q

What is the ‘Sunday Times Test’

A

That for a deprivation of liberty to be lawful it must be:

Prescribed by law (CASE OR STATUTE)

With sufficient precision for the citizen to regulate his conduct and foresee the consequences

490
Q

Will stop and search be a deprivation of liberty if officer can do it on a hunch or intuition?

A

Yes probably

491
Q

Will stop and search be a deprivation of liberty if an officer can do it on reasonable suspicion?

A

Probably not

492
Q

What is the most important limitation for when the state CAN deprive liberty under the ECHR?

A

Arrest and detain

493
Q

What 2 criteria must be fulfilled to arrest and detain in line with the ECHR?

A

Reasonable suspicion

When reasonably considered necessary to prevent committing an offence or fleeing after

494
Q

Is short-term detention of a person outside criminal proceedings allowed?

A

Yes, for the purpose of preventing a concrete and specific offence

495
Q

What does article 5(1) say?

A

Provides the basic substantive right to liberty and the circumstances when the state can lawfully deprive persons of their liberty

496
Q

What does article 5(2) provide?

A

Right for persons to be informed of reasons for their arrest

497
Q

What does article 5(3) provide?

A

That a person who has been arrested and detained shall be brought promptly b4 a judge

498
Q

What does 5(4) provide?

A

That a person deprived of their liberty shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by the court

499
Q

What does 5(5) provide?

A

Enforceable right to compensation for a victim of an article 5 breach

500
Q

Does reason for arrest have to be given at the exact time of arrest?

A

No, reasonable time frame is fine

501
Q

What is the general length of time a terrorist can be detained without seeing a judge?

A

4 days, but it can be less – depends on the case

502
Q

Does a magistrates court have the authority to authorise lawfulness of detention?

A

Yes

503
Q

How long is short-term detention to prevent an offence likely to be deemed lawful?

A

Hours rather than days

504
Q

Can delays of a parole board review amount to a violation of 5(4)?

A

Yes

505
Q

How far apart can reviews of detention be before they are considered unlawful?

A

Member states have discretion, but longer than a year is likely to be unlawful

506
Q

Does article 5(5) (compensation) apply in the UK?

A

Not usually, because HRA sets out remedies in S8. Only applies in ECtHR

507
Q

What does article 6 provide for?

A

Fair trial by independent impartial tribunal established by law

508
Q

What does article 6(2) provide for?

A

Presumption of innocence

509
Q

What does article 6(3) provide for?

A

Set of minimum rights owed to everyone charged with a criminal offence, including access to legal rep

510
Q

Does the right to fair trial apply civil, criminal or both?

A

Both

511
Q

What is the minimum that constitutes as a ‘trial’ for a right to a fair trial?

A

A hearing where an independent and impartial tribunal established by law makes a determination

512
Q

Why does article 6(1) include fair access to the courts?

A

Because without access to justice/fair trial, none of the other rights are enforceable

513
Q

What are the implications of article 6(1) for legal aid?

A

What constitutes effective access to the courts depends on facts of each case

It might be a breach if legal aid is not offered to some people

514
Q

What factors are relevant to the ECtHR in determining whether a tribunal was independent?

A

Manner of appointment

Term of office

Existence of guarantees against outside pressures

Face value of independence

515
Q

How does the ECtHR assess whether a court is impartial under article 6(1)? (2 aspects)

A
  1. Tribunal must be subjectively free of personal prejudice or bias
  2. Must also be impartial from an objective viewpoint
516
Q

How is ‘timely process’ for a fair trial determined?

A

Case by case

517
Q

For criminal offences, what is the general ball-park of time that is acceptable to wait for a fair trial?

A

20 months

518
Q

What 3 factors help determine how long it is appropriate to wait for a fair trial?

A

Complexity of case

Conduct of defendant

Manner in which the case has been dealt with by the authorities

519
Q

Can article 6 be impeded by a preliminary investigation by the police?

A

Yes

520
Q

What is a common example of an article 6 violation for preliminary police investigations?

A

No access to a lawyer in interview for no good reason

521
Q

Does the right to fair trial encompass silence and the right not to incriminate oneself

A

Yes, that is ‘fair’ although it has not expressly been written in article 6

522
Q

Can article 6 be used to prevent deportation?

A

Yes

523
Q

What is the key objective of article 8?

A

Arbitrary interference in private life

524
Q

What are the 4 broad protected interests under article 8?

A

Private

Family

Home

Correspondence

525
Q

What type of right is article 8? (e.g., absolute)

A

Qualified

526
Q

When can qualified rights be interfered with?

A

In accordance with the law, where there is a legitimate aim and is necessary in a democratic society

527
Q

When will an interference in a right be considered necessary in a democratic society?

A

If they answer a pressing social need and are proportionate to the legitimate aim pursued

528
Q

What does the term ‘private life’ encompass?

A

Physical and moral integrity

Personal identity (e.g., name, picture, zone of interaction of a person with others)

Respect for human dignity and freedom

Sexual orientation

529
Q

When will searches of the person engage article 8?

A

If there are insufficient safeguards to protect the individual against arbitrary interference

530
Q

When has state surveillance engaged article 8?

A

Before RIPA, when there wasn’t sufficient tests/law to establish that article 8 had been lawfully violated

531
Q

When will police retaining photographs of people engage article 8?

A

Beyond a reasonable period of time after it is apparent that an individual had not committed a crime was seen to be disproportionate

532
Q

How is family defined under article 8 ECHR?

A

Broadly, it is not restricted to the traditional family unit

‘Living together in order that family relationships can develop normally and family members can enjoy each others company’

533
Q

Will partners living together outside marriage count as family?

A

Yes

534
Q

Can any act that might disrupt the family unit engage article 8?

A

Yes

535
Q

Could deporting a family member/splitting up family result in engaging article 8?

A

Yes

536
Q

Does right to family life mean that spousal visas have to be granted?

A

No, it doesn’t extend that far

537
Q

Would a total ban on spouse visas to everyone under 21 result in an infringement to article 8?

A

Yes

538
Q

What summary of issues is engaged by article 8?

A

Personal dignity

Sexuality

Searches of person

State surveillance

Marriage rights

Immigration

Abortion

539
Q

Is the ‘accordance with the law’ test the same as the ‘prescribed by law test’?

A

Yes

540
Q

Does article 8 give a right to be provided with a home?

A

No

541
Q

What is the starting point in considering the right to home?

A

Protection from invasion and intrusion

Maintaining a situation for which a person has become accustomed

542
Q

When would a health authority going back on its promise to provide a disabled person a specific home, be a violation of article 8?

A

When the person has already become accustomed to living there and it was specially adapted for them and there was a promise they would stay forever

Emotional devastation and anti-therapeutic

543
Q

Were random police visits to pedophile homes a breach of article 8 rights? Why?

A

No, there was a legitimate aim of protecting innocent people and it was conducted proportionately

544
Q

When are unannounced home visits likely to breach article 8?

A

When they are:

Overly frequent

Leading to disclosure of information about the offender (e.g., to neighbours)

545
Q

What physical characteristics are included in the right to home?

A

Physical area

Noise

Other nuisances e.g., smell and waste

546
Q

Was article 8 engaged for noise produced by Heathrow airport? Why?

A

No, this was seen as within the states margin of appreciation, however, there was a remedy in article 13 for availability of remedies in domestic law

547
Q

When has interception of correspondence by police for prevention and detection of crime engaged article 8?

A

When RIPA didn’t exist, so the infringement could not be technically lawful, mitigated/controlled etc

548
Q

Does monitoring of emails and internet usage by a public employer engage article 8?

A

Yes

549
Q

In what circumstances can prison authorities open letters from a lawyer?

A

If there is reasonable cause to believe it contains an illicit enclosure and it is done with suitable guarantees that it will not be read

550
Q

Can prison authorities read lawyer/client letters that they’ve opened?

A

Only in exceptional circumstances, when there is reasonable cause to believe that the privilege is being abused

551
Q

What common law protection extends to prison correspondence with a solicitor?

A

There is a common law right to confidentiality over privileged legal correspondence that has existed before HRA and is spiritually the same

552
Q

Can interference with a right be in accordance with the law, if there is no law surrounding that action?

A

No, there has to be a law detailing when an infringement is allowed or not

553
Q

Can interference with a right be in accordance with the law, if the law surrounding that is unclear?

A

No, it has to be clear

554
Q

How are blanket and indiscriminate policies likely to be treated by the court with regards to article 8?

A

The more blanket they are, the more likely they will infringe on human rights

555
Q

What does article 10 ECHR protect?

A

Freedom of expression

556
Q

What kind of limits, if any, are on article 10? (e.g., qualified, limited, absolute)

A

Qualified

557
Q

Does the freedom of expression remain while the court is deliberating on the legality of curtailing it?

A

Yes

558
Q

What does the freedom of expression specifically encompass? (E.G., types of communication)

A

Right to hold opinions

Receive ideas and information

Express views and opinions

Words, pictures, images and actions intended to express an idea or to present information

559
Q

Does article 10 impose a positive duty on public bodies of disclosure/transparency?

A

No

560
Q

Is preventing publication of interviews with terrorists possible of being banned without infringing article 10?

A

It is possible a ban is allowed if proportionate to the interests of national security

561
Q

When will national security be sufficient to restrict article 10?

A

It has to be proportionate, prescribed by law and a legitimate aim

562
Q

When will prevention of disorder/crime in relation to a protest engage article 10?

A

There has to be reasonable apprehension of a sufficiently imminent breach of peace before any preventative action has been taken

This is in addition to proportionate, prescribed by law and legitimate aim

563
Q

Is there a wide or narrow protection for states afforded to the protection of health or morals?

A

Wide, the ECtHR is likely to allow states to decide what offends their health/morals

564
Q

Does the right to freedom of expression also include the right to receive information?

A

Yes

565
Q

What is one of the most common countervailing interests to freedom of expression?

A

Protection of reputation, defamation suits

566
Q

Is it harder or easier for a politician to sue someone for defamation?

A

Harder, they are expected to have a higher tolerance

567
Q

Does article 10 protect the substance of matters, whilst regulating the way in which ideas are conveyed?

A

Yes,

568
Q

Are national laws protecting religious sensibility afforded a wide or narrow margin of appreciation?

A

Wide

569
Q

What two important points must be kept in mind when considering violations of the rights of others in relation to article 10?

A
  1. At a subnational level, e.g., some speech that is allowed in London might be morally disproportionate in other places within the same country
  2. Ideas that offend, shock and disturb are protected, but you don’t necessarily have a right to do so gratuitously to religious believers (infringing on their article 9 rights) without contributing to any form of public debate
570
Q

Why were bakery owners who refused to write Support Gay Marriage on a cake not in breach of ECHR?

A

Because there is a difference between infringing on somebody else’s free speech, and refusing to personally make a statement yourself

571
Q

Can refusing to disclose a journalist source, in contempt of the court, be an infringement of article 10?

A

Yes

572
Q

When has journalistic source disclosure been upheld?

A

When it related to selling confidential medical information

573
Q

What is a super injunction?

A

An order which restrains publication of material and also information about the content of the order itself, and the fact that the order was made

574
Q

What is the indirect horizontal effect of the HRA?

A

Because courts and tribunals are public authorities, they have to act compatibly with the convention even when interpreting cases that don’t have anything to do with a public body

575
Q

When can an action between 2 private individuals invoke a convention right?

A

There has to be a pre-existing cause of action to ‘tack it onto’

576
Q

What action can private parties seek when they have no pre-existing article 10 action under the ECHR?

A

Common law breach of confidence

577
Q

What an does action of breach of confidence give a remedy for?

A

Unauthorised dissemination of personal information

578
Q

What 3 elements need to be satisfied to bring an action of breach of confidence?

A

Information must have a necessary quality of confidence about it

Information must have been imparted in circumstances importing an obligation of confidence

Must have been an unauthorised use of the information

579
Q

How is the action of breach of confidence impacted by article 10?

A

It might be an existing action where article 10 could be hung upon

Because courts have to interpret consistent with convention, the values enshrined in art 8/10 are now also part of an action for breach of confidence

580
Q

What was made redundant in the breach of confidence action by the ECHR?

A

The requirement that there is an initial need for a confidential relationship

581
Q

Since a need for an initial confidential relationship was made redundant in a breach of confidence action, what new cause of action has arisen?

A

Misuse of private information

582
Q

What 2 tests are required to win a misuse of private information claim?

A
  1. Article 8 is engaged if the applicant had a reasonable expectation of privacy
  2. Balancing exercise between articles 8/10 and consider whether the publication was necessary
583
Q

How will the courts establish a reasonable expectation of privacy in a misuse of private information claim?

A
  1. Is info obviously private?
  2. Would a reasonable person of ordinary sensibilities if places as the subject of disclosure find it offensive?
584
Q

In common-law, how is nature of private information conceptualised?

A

Information that is personal to the possessor

Who he does not intend shall be imparted to the general public

The nature of the information, or form in which it is kept, makes it plain that the information satisfies those criteria

585
Q

Is the common-law expectation of privacy construed narrowly of widely?

A

Widely

586
Q

What factors are taken into account when determining whether there is a common-law reasonable expectation of privacy?

A

Claimant attributes

Nature of activity

Place of activity

Nature/purpose of intrusion

Absence of consent

Whether consent could have been inferred

Effect on the claimant

Circumstances in which the information came to be possessed by the publisher

587
Q

Does information in the public domain carry a reasonable expectation of privacy?

A

No

588
Q

How can a person waive their reasonable expectation of privacy?

A

If they put their information in the public domain

589
Q

When would photos of everyday activities e.g., shopping, going to a restaurant, infringe article 8?

A

When they aren’t in the public interest and are purely of a private nature

590
Q

Why was JK Rowlings sons ‘expectation of privacy’ not to have his photos published upheld?

A

Photo taken in clandestine way

For purposes of publication/sale

Child

Parents had taken great care to keep child out of public eye

591
Q

Why would a person performing a public function not have a reasonable expectation of privacy?

A

Because their performance in their role could be of public interest

592
Q

Would photos released of rioting minors count as violating a reasonable expectation of privacy?

A

No, releasing to identify rioters will likely be upheld

593
Q

Is there a general common law right to privacy in the UKs common law?

A

No

594
Q

What is the decisive factor in balancing the protection of private life against freedom of expression?

A

The contribution that the published photos and articles make to a debate of general interest

595
Q

Is there a positive obligation on the state regarding a right to privacy?

A

Yes

596
Q

Does article 8 take precedence over article 10 or vice versa?

A

Neither takes precedence

597
Q

What 4 points did Lord Steyn say should be taken when balancing articles 8 and 10?

A
  1. Neither article takes precedence
  2. Where values under articles are in conflict, intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary
  3. Justification for interfering or restricting each right must be taken into account
  4. Proportionality test must be applied
598
Q

What 5 criteria did the Grand Chamber set out for contracting states to consider when balancing articles 8/10?

A
  1. Is info of debate of general interest?
  2. How well known is the subject matter
  3. Prior form and conduct of the individual
  4. Form and consequences of the publication
  5. Circumstances when photos were taken/consent
599
Q

Can a super-injunction be discussed in parliament?

A

Yes, will probably be upheld

600
Q

What 5 preliminary issues must be satisfied before a claim for judicial review can be made?

A

Amenability

Procedural Exclusivity

Standing

Time limits

Ouster clauses

601
Q

What types of decisions are amenable to judicial review?

A

Public law decisions

602
Q

What is the typical characteristics of a scenario when something is amenable to judicial review?

A

Public body carrying out a public function under a statutory power

**also prerogative powers

603
Q

In the absence of statutory powers, when is a decision amenable to judicial review?

A

When it exercises public law functions or public law consequences

604
Q

Why are self-regulatory authorities often amenable to judicial review?

A

Because they exercise a public function, especially if what they regulate benefits the public or if the authority wasn’t there, if the government would need to regulate it

605
Q

When would a self-regulatory body exercising a public function not be amenable to judicial review?

A

If the public function isn’t governmental

e.g., horse racing

606
Q

When will a service contracted out by the government be amenable to judicial review?

A

The distinguishing difference seems to be statutory underpinning of the service?

607
Q

What are the 3 elements to the general procedural rule of judicial review?

A

JR is the procedure for public law decisions

Private matters dealt with by ordinary action

Public law challenge in any way other than JR would be an abuse of process

608
Q

What are the 2 exceptions to the procedural exclusivity rule?

A

If neither party objected to private law procedure they could use it

Also when the contested decision was collateral (e.g., it rose out of some other legal claim)

609
Q

If a litigant is asserting a private law right, which incidentally involves a public law issue, do they have to use JR?

A

No

610
Q

Is judicial review appropriate for internal religious conflicts?

A

No

611
Q

What is the minimum required to have standing for JR?

A

Sufficient interest in the matter to which the application relates

612
Q

What 2 factors are considered when considering whether a JR applicant has sufficient standing?

A

Law

Fact

Sufficiency of interest should not be considered without regard to the matter of the complaint

613
Q

When will an association have standing for JR?

A

When the individual members of the association are directly impacted or would have by themselves had standing

614
Q

What factors will be considered before granting an international organisation standing for JR?

A

Whether individual members would have standing

National/international reputation of organisation

Motive of concern

Number of organisation supporters that might have standing

Whether individuals with standing would be able to bring a claim (e.g., resources)

Expertise of organisation

Seriousness of breach

Absence of other challengers

Vindication of ROL

615
Q

When will an individual concerned citizen have standing for JR?

A

They have sincere concern

ROL is important

Are there other more directly interested challengers

616
Q

What is the JR time limit?

A

Promptly

No later than 3mo after grounds arose

617
Q

Can JR standing be refused if a claim was filed within 3mo but not promptly?

A

Yes

618
Q

Can JR time limit be extended by party agreement?

A

No

619
Q

Can the court grant an extension to a JR claim time limit?

A

Yes

620
Q

What will the courts consider when looking at whether to grant a JR time limit extension?

A

Whether delay is undue

Substantial hardship

Substantially prejudice rights of any person

Detrimental to good administration

621
Q

What is the JR time limit for planning decisions?

A

6 weeks

622
Q

What is the JR time limit for public procurement?

A

30 days

623
Q

Will a partial ouster saying JR has to be brought within a certain time limit be upheld?

A

Yes

624
Q

Despite meeting requirements under all 5 preliminary’s, when will JR not be available?

A

If other avenues and alternative remedies haven’t been exhausted

625
Q

What happens in JR procedure after standing within the time limit etc has been approved?

A

The full inter partes hearing where applicants present both sides to a decision

626
Q

What 3 remedies are only available in JR cases?

A

Quashing order – overturns decision of public body who must then take the procedure again

Prohibitory order – prevents public body from acting

Mandatory order – makes the public body perform an action

627
Q

What additional 3 general remedies are available for JR cases?

A

Declaration

Injunction

Damages

628
Q

Are JR remedies available as of right or discretion?

A

Discretion

629
Q

How/when/why are JR remedies ‘balanced’

A

The remedy is balanced against the degree of individual interest against the wider public interest

630
Q

What are the 4 grounds for JR claims?

A

Illegality

Unreasonable

Procedural impropriety

Legitimate expectation

631
Q

What does illegality as a JR ground mean?

A

Decision maker must correctly understand the law and must give effect to it

632
Q

What are the 5 subcategories of JR illegality?

A

Simple illegality

Errors of law

Errors of fact

Abuse of discretion

Retention of discretion

633
Q

What is simple illegality (JR)

A

When the authority acts ultravires

634
Q

What is an exception to having acted somewhat ultra vires (JR)

A

If what the public body did was reasonably incidental or consequent upon a power that it did have

635
Q

What is the principle of legality in JR?

A

Presumption that parliament did not intend to authorise the infringement of fundamental/constitutional rights unless it had given specific statutory authorisation

636
Q

What is a JR error of law?

A

Decision maker was wrong about the law, or its interpretation

637
Q

In what 3 circumstances will errors of law not be reviewable?

A

Where error of law is not decisive to the decision

Where decision maker is interpreting some special system of rules

Where the power granted is so imprecise that it can be interpreted in a wide range of ways

638
Q

What is a JR error of fact?

A

When there has been a mistake as to fact that changed the decision

639
Q

What 3 types of error of fact are susceptible to JR?

A

Precedent facts

No evidence for a fact

Ignorance or mistake of an established fact

640
Q

What is a precedent fact?

A

When the decision makers power to decide something hinged on established an initial fact

641
Q

What is no evidence for a fact?

A

When there is no evidence for a fact on which a decision is based

642
Q

What will the courts consider when establishing ignorance or mistake of an established fact?

A

If the judgement requires the existence of facts:

Do the facts exist?

Have they been taken into account?

Was the judgement made upon proper self-direction as to those facts?

Was the judgement made upon other facts which shouldn’t have been taken into account?

643
Q

What will the courts refuse to examine in a JR case based on ignorance or mistake of an established fact?

A

The evaluation of those facts to arrive to a conclusion

They only look at whether they exist and have been considered

644
Q

What characteristic must be satisfied for a claim based on ignorance or mistake of established fact to be reviewable?

A
  1. Must be a mistake
  2. Fact/evidence must have been established (uncontentious and objectively verifiable)
  3. The appellant must not have been responsible for the mistake
  4. Mistake must have played a material part in reasoning
645
Q

In what 2 ways can abuse of discretion be established?

A

Failing to take a relevant consideration into account or taking a irrelevant consideration into account

Using a power for an improper purpose

646
Q

What 3 types of considerations present themselves to a decision maker in terms of abuse of discretion?

A
  1. Mandatory factors
  2. Prohibitory factors
  3. Discretionary factors
647
Q

What is the JR ground improper purpose?

A

A decision maker can only use a power given to it by parliament for the purpose for which it was given

648
Q

In what 2 ways does retention of discretion arise?

A

Fettering of discretion

Unlawful delegation of discretion

649
Q

What is the general rule around delegating discretion when a public body is empowered to make a decision by an Act of Parliament?

A

That they cannot delegate their discretion

650
Q

What is the Carltona principle?

A

An acknowledgement that it would not be practical or efficient for one government minister to personally make all the decisions that they are empowered to make

651
Q

What are the 2 dimensions of reasonableness?

A

Basis of review

Intensity of review

652
Q

What is the key difference between reasonableness and illegality?

A

Illegality is based on facts

Reasonableness is based on evaluation of facts

653
Q

What are the 3 broad types of unreasonableness?

A

Material defects in decision making process

Oppressive decisions

Decisions that violate constitutional principles

654
Q

What 2 factors arise from material defects in decision making process?

A

Wrongly weighing up factors

Irrationality, illogicality

655
Q

What is a wrongly weighed up factor defect?

A

Correct factors were identified but they were weighed up wrong

656
Q

What is an irrationality ground when looking at unreasonableness in JR?

A

Failure in the logical chain of reasoning by the decision maker

657
Q

What is an oppressive decision under the unreasonableness criteria?

A

The decision is unreasonable because it is oppressive, draconian or disproportionate

658
Q

How can JR unreasonableness be established under ROL?

A

Arbitrary decisions

Inconsistent and unclear decisions

Equality b4 the law

Consistency and certainty in application of the law

659
Q

What is the starting point for reasonableness in JR?

A

Wednesbury criteria… SO unreasonable that no reasonable authority could have come to it

660
Q

What is a sub-Wednesbury standard?

A

High intensity of review

Applied for fundamental rights

661
Q

What is a super-wednesbury standard?

A

Low intensity review

Applied for social and economic policy

Same as OG wednesbury

662
Q

What is procedural impropriety about?

A

The fairness of the procedure that was used to reach the decision

663
Q

What are the 3 component parts/circumstances make up procedural impropriety?

A

Failure to observe procedural statutory rules

General duty to act fairly in public law decision making

Rule against bias

664
Q

What will the courts consider when looking at procedural statutory obligations?

A

Was the statutory obligation so significant that parliament would have intended a failure to comply to render the process unlawful?

yes – quashed

no – not quashed

665
Q

Under the common law duty to act fairly, how is the level of fairness owed determined?

A

What is at stake? The more that is at stake the more fairness required

666
Q

What 3 tiers of fairness were established in licensing cases?

A

Revoking license – most fairness required

Renewing a license – medium fairness required

Applying first time – low level of fairness required

667
Q

What examples of the ‘content’ of fairness that are common in these kinds of cases?

A

Right of notice to a case against you

Right to make representations

Call witnesses

Legal representation

To receive reasons

668
Q

What is direct bias under procedural impropriety?

A

A pecuniary or other direct personal interest in a matter they are determining

669
Q

What would happen to a decision reached under a form of bias?

A

It would be quashed

670
Q

Does there have to be proof that a bias was acted on in a deceitful way?

A

No, if it looks like there could be bias that is enough

671
Q

What is the Porter v Magill test?

A

Whether the fair minded and informed observing having considered the facts would conclude that there was a real possibility that the public body was biased

672
Q

When does a legitimate expectation arise in JR?

A

Expectation of procedure or benefit arising from a representation or promise made by an established practice

673
Q

What are the 2 primary forms of legitimate expectation?

A

Procedural

Substantive

674
Q

What is a procedural legitimate expectation?

A

Public body promised a specific procedure would be followed

Established practice

675
Q

What will a substantive legitimate expectation entitle a person to?

A

The benefit that they had been promised

676
Q

What is the courts 3 step approach to assessing legitimate expectation?

A

Has an expectation arisen

If so, is it legitimate

Has the public body lawfully frustrated the legitimate expectation

677
Q

How can an expectation arise under legitimate expectation?

A

Express promise

Regular practice

678
Q

What factors are considered to determine whether the expectation was legitimate?

A

Clarity

Legality

Agency

Knowledge

Reliance

679
Q
A

SQE 1 - FKL1 (12 decks)

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